Symposium: Does the Chief Justice not understand politics, or does he understand it all too well?

Chief Justice Roberts has moved the Supreme Court’s election law jurisprudence steadily and stealthily in his preferred direction. Usually this involves subtle shifts in doctrine, the planting and later reliance on key dicta, and hints of future lawsuits to come. This is as true of Roberts’s opinions in the voting rights arena as it is in campaign finance. As I explain at Slate, yesterday’s decision in McCutcheon v. Federal Election Commission uses all of these tools. The Chief’s opinion constricts the definition of corruption, ramps up ever so subtly the scrutiny of contribution limits, and all but invites a challenge to the remaining pillar of the McCain-Feingold law: the soft money ban. It is hard to see what will be left of campaign finance law beyond disclosure in a few years.

In this post I wanted to focus on a different tool the Chief Justice uses in these controversial election cases: ostensible reliance on the political branches to militate the harshness of the Court’s opinions.

Consider last Term’s decision in Shelby County v. Holder, striking down a key portion of the Voting Rights Act. Justice Thomas was ready to strike the preclearance provision itself, in Section 5 of the Act (a law which required states with a history of racial discrimination in voting to get approval before making changes in any voting practices or procedures). The Chief Justice said he was not willing to go so far, striking “only” the Section 4 coverage formula defining which jurisdictions would be subject to preclearance. “Congress may draft another coverage formula based upon current conditions.”

At the time the Chief Justice wrote this, it was quite clear that Congress was polarized on (this) and many issues. Because of congressional polarization, the Supreme Court’s word on this was likely to be final: jettison the current coverage formula, and almost certainly nothing would come in its place.

Yesterday’s McCutcheon decision evinces a similar hand-off to other parts of the government which cannot handle the job. Justice Breyer’s dissent provides all kinds of examples in which the demise of the aggregate contribution limits can lead to the reemergence of soft money systems and major fundraising by elected and party officials. Chief Justice Roberts’s main response was that Congress can tighten the laws limiting transfers of money and the FEC can better enforce its rules regarding “earmarked” campaign contributions.

Congress is not going to tighten the fundraising rules. Democrats and Republicans cannot even agree upon passing laws to fix the gaping holes in our disclosure provisions. Disclosure used to be common ground, but no longer. Remember that the Republican National Committee was one of the plaintiffs in the McCutcheon case.

Nor is FEC going to beef up enforcement. In recent years the Republican commissioners on the FEC have acted in lockstep to block effective campaign finance regulation, even disclosure. As Democratic FEC Commissioner Ann Ravel writes in a New York Times op-ed today, “The Federal Election Commission is failing to enforce the nation’s campaign finance laws. I’m in a position to know. I’m the vice chairwoman of the commission.”

Another example of apparent political naiveté: Chief Justice Roberts points out that the best way to deal with the problem of corruption is through an extensive disclosure system via the Internet. He touts the great advantages of the current disclosure system: “Today, given the Internet, disclosure offers much more robust protections against corruption. See Citizens United. Reports and databases are available on the FEC’s Web site almost immediately after they are filed, supplemented by private entities such as Open­Secrets.org and FollowTheMoney.org. Because massive quantities of information can be accessed at the click of a mouse, disclosure is effective to a degree not possible at the time Buckley, or even McConnell, was decided.”

In fact, however, our disclosure laws have become notoriously porous thanks to congressional and IRS inaction and, in the IRS’s case, incompetence and political scandal.

So what to make of this? Is it, as Sam Kleiner claims in The New Republic, that the Chief Justice has no idea how money in politics works? Might the Chief Justice naively believe that people of good faith in the political branches of government will work across the aisle in the interest of the national good?

The Chief Justice is a smart and politically savvy individual who understands the political realities of Washington. He knows that Congress will almost certainly fix neither the Voting Rights Act nor the campaign finance system which he broke.

In a bit of irony, the Chief Justice reveals his deep understanding of how Washington works in his discussion of disclosure. Right after pointing out how effective our current disclosure law is, the Chief adds the following: “The existing aggregate limits may in fact encourage the movement of money away from entities subject to disclosure. Because individuals’ direct contributions are limited, would-be donors may turn to other avenues for political speech. See Citizens United. Individuals can, for example, contribute unlimited amounts to 501(c) organizations, which are not required to publicly disclose their donors. . . . Such organizations spent some $300 million on independent expenditures in the 2012 election cycle.”

The passage reveals that the Chief Justice understands exactly what is going on politically. Congress has left a big hole in disclosure law, and donors rush in to take advantage of it. Donors who want anonymity will shift away from direct contributions to groups that don’t disclose. Because it suits him in this instance, the Chief Justice does not rely upon the possibility that Congress, through the DISCLOSE Act or otherwise, will fix our dismal disclosure laws and such shifting will disappear.

Chief Justice Roberts continually shows a desire to downplay the significance of his rulings, and ostensible political naiveté is now part of the path to get there. As much as I disagree with Justice Thomas’s opinions in both the Voting Rights Act and campaign finance cases, I respect the fact that he tells it like it is and pulls no punches. Not a hint of “faux judicial restraint.”

Current Relists

Conference of November 16, 2018

Andersen v. Planned Parenthood of Kansas and Mid-Missouri Whether the provisions of the Medicaid Act that require participating states to include in their plans the ability of eligible individuals to obtain services from any “qualified” provider, 42 U.S.C. § 1396a(a)(23), but grant states broad authority to exclude providers for violating state or federal requirements, 42 U.S.C. § 1396a(p), indicate that Congress clearly and unambiguously intended to create an implied private right of action to challenge a state’s determination that a provider is not “qualified” under the applicable state regulations.

City of Escondido, California v. Emmons (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

Fleck v. Wetch (1) Whether it violates the First Amendment for state law to presume that the petitioner consents to subsidizing non-chargeable speech by the group he is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby the petitioner must affirmatively consent to subsidizing such speech; and (2) whether Keller v. State Bar of California and Lathrop v. Donohue should be overruled insofar as they permit the state to force the petitioner to join a trade association he opposes as a condition of earning a living in his chosen profession.

Major Cases

In re Department of CommerceWhether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Timbs v. IndianaWhether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.

Apple Inc. v. PepperWhether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.